Russia in Ukraine: Limits of Law (Part 2 of 2)

In my previous post, I discussed the question of who is the legitimate government of Ukraine and what is at stake for parties involved. The questions I reserved for this post were:

Does Russia’s intervention constitute use of force? If yes, then does Russia have a defence under international law. If no, then what can be done now?

What are the possible political ramifications of Russian intervention in Ukraine?

As far as the first part of the first question is concerned, the answer is yes. Russia’s actions – mobilising troops into Crimea beyond the permissible limit (Russia and Ukraine have a lease agreement that allows Russia’s Black Sea Fleet to remain in Sevastopol until 2042) as well as engaging in hostile manoeuvres in the Black Sea – satisfy both use and threat to use force as mentioned in Article 2(4) of the United Nations Charter. But are there defences that Russia can invoke? Yes.

Russia’s first line of defence is that there has been no use of force since the troops were invited by the legitimate government of Ukraine – in Russia’s eyes that is President Yanukovych’s government. If Yanukovych’s government is indeed found to be the legitimate government of Ukraine, then Russia’s claim is correct. International law allows intervention by invitation where a legitimate government can seek help from another state to protect itself from internal or external threats. Of course, if Yanukovych’s government is found to be not the legitimate government, then Russia’s claim falls. If President Yanukovych is no longer the President of Ukraine, then he obviously could not have invited Russian troops to Ukraine.

Another line Russia seems to be taking is defence of Russians. It is true that historically the Crimean peninsula has had strong ties with Russia. In fact most people in Crimea are Russians and have Russian passports. Moreover, the first act of the new government was to repeal the law classifying Russian as one of the official languages of Ukraine.

There is certainly precedent for a country using force to protect its nationals in another country. An example that comes to mind is Israel’s counter-terrorist operation in Uganda in 1976. An Air-France plane was hijacked and take to Entebbe in Uganda where all but the Jewish passengers were allowed to leave. Israel Defence Forces entered Uganda secretly without Uganda’s consent and in a 90-minute movie-like operation liberated the hostages. Apart from a light slap on the wrist by Kurt Waldheim, then Secretary-General of the United Nations, there was no institutional condemnation of Israel’s actions.

The problem with this rationale for use of force, however, is subjective interpretation by different states. For instance, USA has run the defence of nationals argument to justify its intervention in Grenada in 1983 – a socialist government had come to power in Grenada. This was condemned by the General Assembly of the United Nations.

Now Russia could very well argue threat to life of its nationals owing to ongoing violence in Ukraine. Both USA’s reason for Grenada and Russia’s reasons for Ukraine are allegedly equally flimsy but where we draw the line is a controversial issue. When is a state allowed to defend its nationals?

Coming to the question of political ramifications. I spoke a bit about it in my previous post where I mentioned how the blocs are not as clearly divided as we’d like to assume. USA wants an aggressive response to Russia’s actions – not because it can afford to undertake one, but because silence now will set USA back in terms of its position as a superpower. France, Germany, and UK on the other hand are not so sure about any direct conflict – military or trade – with Russia. Though push come to shove, and if USA is ready to bear majority of the cost, NATO partners will fall in line with US policies. China had initially condemned intervention in Ukraine without mentioning Russia, but now seems to have reconciled its position with the Russian one. Now a military confrontation between USA and Russia is extremely unlikely. Both superpowers have never gone to war directly against the other as both understand that would be mutually assured destruction, even without the nuclear weapons. What is more plausible is a confrontation in terms of trade and in terms of institutional politics (UN, WTO, etc.).

But lets take a wider view. There is a conflict ongoing in Syria right now. While USA has wanted to intervene in Syria – directly or indirectly – Russia and China have blocked all efforts to do so in the Security Council. I would not put it beyond the major powers of the world to arrive at an agreement of sorts whereby both the Russian defence of nationals in Ukraine is as well as western intervention in Syria in defence of the Syrian people are labeled as humanitarian. It would make a lot of geopolitical sense in that USA has traditionally been proactive in the Middle East owing to its relationships with both Saudi Arabia and Israel. Whereas Ukraine falls in Russia’s traditional sphere of influence. Moreover, the protection afforded to Syria by Russia is a remnant of the Soviet era. Syria is neither resource rich nor in and of itself sufficient to countervail American influence in the Middle East. Russia would rather cut its losses in Syria, retain control of some sort over Ukraine, and maintain presence in the Middle East via Iran (Iran has a stronger countervailing effect to American influence (read Israel) in the Middle East).